Citation Nr: 0732604
Decision Date: 10/17/07 Archive Date: 10/26/07
DOCKET NO. 04-44 314 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased disability rating for service-
connected coronary artery disease (CAD) with myocardial
infarction (MI), currently evaluated as 10 percent disabling,
to include restoration of a previously-assigned 30 percent
disability rating.
2. Entitlement to an increased (compensable) disability
rating for service-connected residuals of a fracture of the
right fourth metacarpal.
3. Entitlement to an increased (compensable) disability
rating for service-connected bilateral pes planus.
4. Entitlement to service connection for sinusitis.
5. Entitlement to service connection for acid reflux
disease, claimed as secondary to service-connected CAD with
MI.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Alsup, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1981 to June
1992.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from June 2004 and November 2004 rating
decisions of the Department of Veteran Affairs (VA) Regional
Office (RO) in Detroit, Michigan.
Procedural history
In a September 1992 rating decision, the RO granted service
connection for
CAD with MI; a 30 percent disability rating was assigned.
Service connection was also granted for a history of fracture
of the right fourth metacarpal, and a noncompensable (zero
percent) disability rating was assigned.
In May 2003, the veteran contacted the RO, asking for
increased ratings for his two service-connected disabilities,
as well as service connection for a number of other claimed
disabilities, including sinusitis, pes planus and acid reflux
disease.
The veteran's May 2003 claims were denied in the June 2004
rating decision. Moreover, the rating assigned for the
veteran's CAD disability was proposed to be reduced to from
30 percent to 10 percent disabling. The veteran disagreed,
and the RO issued a statement of the case (SOC) in November
2004. The veteran submitted a substantive appeal [VA Form 9]
in December 2004.
In a November 2004 rating decision, the RO granted service
connection for bilateral pes planus. A noncompensable rating
was assigned. The RO interpreted comments in the December
2004 VA Form 9 as a notice of disagreement as to the assigned
disability rating. See Grantham v. Brown, 114 F.3d 1156
(Fed. Cir. 1997) [where an appealed claim for service
connection is granted during the pendency of the appeal, a
second Notice of Disagreement must thereafter be timely filed
to initiate appellate review of "downstream" issues such as
the compensation level assigned for the disability]. The RO
issued a SOC as to the issue of an increased rating for pes
planus in March 2005.
In a July 2005 VA Form 646, the veteran's representative
stated that the veteran disagreed with the initial disability
rating for service-connected pes planus. The representative
further suggested that a 10 percent rating would be
appropriate. This communication, although not styled as a
substantive appeal, meets the requirements for a substantive
appeal and was timely filed. See 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 20.201, 20.302 (2006). Accordingly,
this issue is in appellate status.
Clarification of issues on appeal
As described above, after the veteran field a claim for an
increased rating for his service-connected CAD, the RO
reduced the rating from 30 percent to 10 percent Thus, the
appeal contains the related matters of the veteran's
entitlement to an increased rating as well as restoration of
the previously-assigned 30 percent rating. For the sake of
convenience, the Board has combined these into one issue.
With regard to the issue of entitlement to service connection
for acid reflux disease, the record reveals that RO denied
service connection on a direct basis in the June 2004 rating
decision. However, the veteran and his representative have
consistently contended that the acid reflux disease is
secondary to the service-connected CAD.
The issue has therefore been recharacterized by the Board.
Remanded issues
All issues are REMANDED to the RO via the VA Appeals
Management Center (AMC) in Washington, DC. VA will notify
the veteran if further action is required on his part.
Issue not on appeal
One of the issues which was denied by the RO in the June 2004
rating decision was entitlement to service connection for arm
pit cysts. In the December 2004 VA Form 9, the veteran
stated "At this time I am not experiencing a problem with
arm cysts." In a September 2007 informal brief, the
veteran's representative stated that because the veteran did
not have a right armpit cyst condition, the claim for service
connection of that condition was withdrawn. The Board finds
that the veteran's withdrawal of his appeal as to that issue
meets the requirements of 38 C.F.R. § 20.204 (2006). Thus,
the issue regarding entitlement to service connection for
right armpit cysts is considered withdrawn and is no longer
in appellate status.
REMAND
Reasons for remand
For reasons expressed below, the Board finds that all issues
on appeal must be remanded for additional evidentiary and
procedural development.
Notice concerns
Under 38 U.S.C.A. §§ 5103, 5103A (West 2006), VA must notify
the claimant and the claimant' s representative, if any, of
any information and any medical or lay evidence not
previously provided to VA that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative of what
the evidence must show to support a claim. Moreover, VA is
obligated to inform the veteran that he may send any evidence
he believes may support his claim, in compliance with the
requirements of 38 C.F.R. § 3.159(b). After careful review,
the Board has concluded that the statutory notice
requirements have not been satisfied with respect to the
issues on appeal.
In July 2003, the veteran was sent a notice letter which did
not comply with the VCAA. That letter was in terms of the
submission of new and material evidence, even though this was
not a factor with respect to all of the veteran's claims,
with the possible exception of the pes planus claim. The
Board specifically notes that the veteran was not informed
what the evidence must show to support a claim for service
connection, secondary service connection or an increased
disability rating.
Additionally, in Dingess v. Nicholson, 19 Vet. App. 473
(2006), the United States Court of Appeals for Veterans
Claims (the Court) observed that a claim of entitlement to
service connection consists of five elements: (1) veteran
status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree
of disability; and (5) effective date. The Court further
held that the notice requirements of section 5103(a) apply
generally to all five elements of that claim. Therefore,
upon receipt of an application for service connection,
section 5103(a) and section 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
This includes notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.
After review of the record, the Board further finds that the
notice requirements of Dingess have not been met. The last
action by the RO on this case appears to have been in May
2005, before the Dingess decision was rendered by the Court.
The Board must therefore remand this case to the agency of
original jurisdiction because the record does not show that
the veteran was provided adequate statutory notice and the
Board is without authority to do so. See Disabled American
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339
(Fed. Cir.) [38 C.F.R. § 19.9(a)(2)(ii), giving the Board
direct authority to cure a procedural defect in an appeal by
providing the claimant with notice under the VCAA, was
invalid as contrary to the statutory authority, 38 U.S.C.A. §
5103(b)].
The secondary service connection claim
As discussed in the Introduction above, the veteran is
seeking service connection for gastrointestinal disease as
secondary to his service-connected CAD. The RO has not
considered the theory of secondary service connection and no
SOC has been issued addressing it. Moreover, as noted above,
the veteran has not received proper notice of what the
evidence must show to support such a claim.
In order to establish service connection for a claimed
disorder on a secondary basis, there must be (1) medical
evidence of a current disability; (2) a service-connected
disability; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998). In this case, there appears to be evidence that
arguably satisfies element (1), and element (2) is obviously
satisfied. The nexus issue, in its present state, raises
questions that must be addressed by an appropriately
qualified physician. See Charles v. Principi, 16 Vet. App.
370 (2002); see also 38 C.F.R.
§ 3.159(c)(4) (2005) [a medical examination or opinion is
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim].
Accordingly, the case is REMANDED to the Veterans Benefits
Administration (VBA) for the following action:
1. VBA must issue a corrective VCAA
letter in order to ensure that all
notification required by the VCAA is
completed, specifically to include sending
a letter to the veteran which complies
with the requirements of 38 C.F.R. §
3.159(b) and the notice requirements
announced in Dingess.
2. VBA should refer the veteran's VA
claims folder to a physician, who should
render and opinion as to whether it is a s
likely as not that any currently diagnosed
gastrointestinal disability is related to
the veteran's service-connected
cardiovascular disease, to include any
medication prescribed therefor.
If physical examination and/or diagnostic
testing of the veteran is deemed to be
necessary by the reviewing physician, such
should be accomplished. A report should
be prepared and associated with the
veteran's VA claims folder.
3. After undertaking any additional
development it deems necessary, VBA should
again review the record and readjudicate
the veteran's claims. If the decision
remains unfavorable to the veteran, in
whole or in part, a supplemental statement
of the case (SSOC) should be prepared.
The veteran and his representative should
be provided with the SSOC and an
appropriate period of time should be
allowed for response.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2006).
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).